Right to Silence in British Columbia - What Does This Mean?

The right to silence is one of the more well-known rights that people have when dealing with police.  This is at least partially due to the influence of American television and movies where people dramatically “plead the fifth” (referring to the Fifth Amendment to the American Constitution).

You have a similar right in Canadian law based on the Canadian Charter of Rights and Freedoms.  The courts in Canada have also stated that the right to silence is a principal of fundamental justice.  What this means in a practical sense can sometimes be tricky to figure out.

If you’re not under arrest or being detained

If you have not been arrested or detained and are not in a car or a movie theatre, you don’t need to say anything to a police officer who asks you questions.  No matter what they ask or how many questions they have, you don’t need to reply.
If you do find yourself stopped by police in a car or movie theatre, you only need to give them the following information (or show them a piece of identification with it):

1. Your name
2. Your date of birth, and
3. Your address

You have no obligation to say anything else or answer any other questions.

If you have been arrested or detained

You have to give the police the information above if they say you have broken the law.  Other than that, you don’t need to say anything or answer any questions.  In fact, if you’re under arrest, your best course of action is almost always to remain silent until you have the opportunity to talk to your lawyer.  

If you find yourself in this situation, it’s important to understand that asserting your right to silence isn’t like a magic spell that gets the police to stop their questioning, as it’s often portrayed in fictional movies and television shows.

The right to silence is the right to not speak or answer police questions and to not have this held against you as evidence of your guilt.  It is not the right to not be spoken to.  In other words, the police can continue to ask you questions.  For example, in one case a man said 18 times during police questioning that he was using his right to silence, but the police kept asking questions and he eventually answered some.  The courts decided that since the statements were found to be voluntary they were admissible as evidence against him and his conviction was upheld (R v Singh, 2007 SCC 48, [2007] 3 SCR 405 (LexUM)).

This issue of voluntariness is what is often considered the most important matter when looking at the right to silence because it is one of the reasons the right was established in our law.  Any statement made to police must be voluntary – that is it must be made without any threats from police or bribes that you’ll get something for talking.  The other and related principal behind the right to silence is that you can’t be forced to make statements against yourself.  If you have the right to not speak, then both of these important considerations are covered.